The appellant was charged by information in two counts in the Circuit Court of Barry County with the sale of intoxicating liquor, viz., hootch, moonshine and corn whiskey. Tried to a jury he was found guilty under the first count and his punishment assessed at a fine of $500 and twelve months' imprisonment in the county jail.
The testimony of the witnesses for the State was to the effect that two of them went to the residence of the appellant at about dark, July 25, 1925, and bought from him and his wife one quart of corn whiskey, for which they paid the appellant $2. While testifying with evident reluctance they stated that "they believed the appellant then on trial was the man from whom they bought the liquor." On cross-examination counsel for the appellant conceded that the witnesses who made the purchase were at the appellant's house by asking them "what direction they were going when they came to Schroetter's home." Their answers to this inquiry corresponded with the testimony *Page 411 of witnesses who had resided in the neighborhood for forty years as to the course to be pursued to reach the appellant's residence.
The appellant denied that he sold the liquor, and interposed testimony to sustain an alibi by stating that on the 25th day of July, 1925, he and his wife were in Pierce City and did not return until nine o'clock that night. In this he is corroborated by his wife and a neighbor, the latter stating that he accompanied the appellant to Pierce City. The jury did not believe this testimony.
I. No tenable objection can be urged to the information. That it consists of two counts, each a felony, charging the same offense and requiring the same proof to sustain aInformation. conviction does not affect its validity. While a conviction can be upheld only upon one count, if proof be made which will meet the allegations of either it will suffice to sustain the verdict. The appellant, having been convicted upon the first count upon proof sufficient to sustain his conviction thereunder, he has no ground of complaint. [State v. Link, 286 S.W. (Mo.) 12, and cases.]
II. Appellant's motion for a new trial contains fourteen assignments of error. We will consider only thoseSufficient which by a liberal construction of Section 4079,Evidence. Revised Statutes 1919, as amended, Laws 1925, page 198, can be held to comply with the requirements of that statute.
Eight of these assignments assail the sufficiency of the evidence to sustain the verdict. They may, therefore, be considered as one. The two witnesses who bought the liquor from the appellant and his wife testified with sufficient certainty to the purchase. This testimony, when considered in connection with the other incriminatory facts and circumstances in the case, cannot be held to be otherwise than substantial in its nature, and as such sufficient to sustain the verdict. It is scarcely necessary in this connection to repeat what we have frequently held, that in the presence of proof of the existence of facts legally required to be shown to sustain a verdict, we will relegate the weight of the testimony to the jury, and that before we will interfere with their finding there must either be a total failure of evidence or it must be of such a nature that the necessary inference is that it is the result of passion, prejudice or partiality. [State v. Renfro, 279 S.W. (Mo.) l.c. 704; State v. Field, 262 Mo. l.c. 164; State v. Concelia, 250 Mo. l.c. 424.]
III. The appellant urges that the court erred in the admission of incompetent, etc., evidence on the part of the State over the objections of the appellant. Only two of these are entitled to *Page 412 consideration on account of the failure of the appellant to properly preserve his objections to the others. EachLeading of the assignments to which the appellant objected wasQuestion. that the question asked was leading and in each case the objection was not made until after the question had been answered and hence too late. [State v. Glazebrook, 242 S.W. (Mo.) 928; State v. Ferguson, 183 S.W. (Mo.) 336.]
Error is assigned in not sustaining the appellant's objection to the admission of testimony that after the witnesses who had purchased the liquor, were returning from the appellant's residence, they had a collision. This was wholly irrelevent matter and might well have been excluded on thisIrrelevant ground. However, the appellant has no cause forMatter. complaint because this testimony was admitted in the absence of any objection on his part.
IV. Error is further assigned on account of the conduct of the prosecuting attorney, who is alleged, during the progress of the trial, to have handed a court docket to one of the jurors showing that other cases were pending against the appellant for violating the prohibition statute. No objection was made orConduct of exception saved to this alleged error and it is notAttorney. for our consideration. If it were necessary in disposing of this objection it might be added that the appellant had admitted that he had been guilty of prior violations of that statute and the otherwise ill-advised conduct of the prosecuting attorney was harmless.
In addition it is urged that the jury was not selected in the manner required by the statute and that this information has come to the appellant since the trial. This allegation of misconduct is too general and is therefore insufficient to challenge the attention of the trial court. Besides, this assignment constitutes an allegation of fact and it does not proveJury. itself. [State v. Miller, 144 Mo. l.c. 29; State v. Grant, 144 Mo. 66.] The acts of trial courts will not be reviewed upon unsupported allegations in the motion for a new trial. [State v. Jewell, 90 Mo. 467.]
V. Objection is made to the remarks of the prosecuting attorney which was sustained by the court. Error is assigned, however, in the fact that the court refused to reprimand the attorney as demanded by the appellant. The remark complained of was that the prosecuting attorney had misstated the testimony of oneArgument of the State's witnesses as to his having identifiedto Jury. the location of the appellant's residence subsequent to the purchase of the liquor. The contention is that no testimony to this *Page 413 effect was given. It is enough to say that in this respect the appellant is mistaken. Such testimony was given, and while the court was not in error in sustaining the objection to the remark by reason of the immateriality of the testimony, there was no occasion, in protection of the appellant's rights, for a reprimand, and there is in this regard no cause of complaint.
No prejudicial error appearing the judgment should be affirmed. It is so ordered. Blair, and White, JJ., concur in result.